United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
AIKEN, UNITED STATES DISTRICT JUDGE
Thelma Barone, filed suit against the City of Springfield
(the City) and several employees of the City and the
Springfield Police Department (the Department) on August 17,
2015. Plaintiff alleges that defendants violated her First
Amendment rights under 42 U.S.C. § 1983 by: (1)
retaliating against her for speaking out about complaints of
police racial profiling; and (2) requiring her to relinquish
her right of free speech to maintain her employment,
constituting an unconstitutional prior restraint. Doc. 1;
Doc. 56. On May 25, 2016, this Court denied plaintiffs Motion
for Partial Summary Judgment on her second claim for relief.
Doc. 42. On October 13, defendants filed the instant Motion
for Summary Judgment on both claims. Defs.' Mot. Summ. J.
at 1. For the following reasons, defendants' motion is
granted and plaintiffs second Motion for Partial Summary
Judgment (doc. 50) is denied.
March 24, 2003, the Department hired plaintiff as a Community
Service Officer II. Plaintiff was assigned as a victim
advocate and multicultural liaison. Beginning in the spring
of 2013, plaintiff began receiving calls from members of the
Latino community complaining about racial profiling by
members of the Department. In response, plaintiff informed
Department leadership of her concerns regarding police
officer interactions with the Latino community. The
Department maintains it investigated at least three formal
complaints involving race or ethnicity during 2013 and 2014.
In contrast, plaintiff alleges that the Department leadership
denied any racial profiling problems existed and dismissed
such complaints throughout 2013 and 2014.
2014, the Department investigated two incidents of
untrustworthiness involving plaintiff. The first incident
occurred on June 28, 2014, when plaintiff led a school tour
to visit five different Department units. Barone Decl. ¶
12; Doney Decl. ¶ 8, Ex. 4, at 1. During the tour, some
students took photos of restricted areas. Plaintiff claims
that either she or her fellow tour guide asked permission to
photograph each unit and that each unit granted permission.
Barone Decl. ¶ 13. Some unit employees do not remember
whether they were asked or granted permission. Rappe Dep.
second incident occurred on September 2, 2014, and involved
plaintiffs report of a potential domestic violence crime.
Plaintiff was the only member of the Department with
information about the crime. She left a message with
dispatchers asking Sgt. Boring to call her back. Plaintiff
recalled that she had described the allegations of violence
in the message. Barone Decl. ¶¶ 15-16. Sgt. Boring
and the dispatchers, by contrast, asserted that plaintiff
merely requested a call back and did not explain that she was
calling about a potential crime. Doney Decl. Ex. 3, at 4-6.
When confronted with a recording of the call showing
plaintiff had merely requested a call back without mentioning
the serious nature of the message, plaintiff refused to admit
her mistake, instead asking whether the recording had been
altered. Doney Decl. Ex. 3, at 5-6. Sgt. Rappe investigated
both incidents, interviewed plaintiff, and in January 2015,
prepared a written report of his findings.
February 5, 2015, plaintiff spoke at a City Club of
Springfield event. Plaintiff alleges that she was asked
whether she knew of complaints of racial profiling, and she
responded that she had heard of such complaints.
February 12, 2015, Chief Doney informed plaintiff that the
Department was placing her on administrative leave pursuant
to the 2014 investigation. He provided plaintiff with a
memorandum entitled "Allegation of Misconduct
Investigation" and formally notified her that she was
subject to an investigation for untruthfulness. During the
investigation, plaintiff was suspended from duty with pay.
March 4, 2015, Chief Doney prepared a memorandum informing
plaintiff of the initial results of the investigation and the
tentative finding that plaintiff had violated several
sections of the Department's code of conduct. Plaintiffs
alleged violations included: (1) unbecoming conduct; (2)
unsatisfactory performance; and (3) knowingly making an
inaccurate, false, or improper report. Chief Doney informed
plaintiff that the allegations were sufficient to justify
termination for cause.
the following months, the Department continued the
investigation. On July 15, 2015, Chief Doney informed
plaintiff that she would be suspended for four weeks without
pay and required her to sign a Last Chance Agreement
(Agreement). Two weeks of the suspension were to be completed
at the end of July 2015, and the other two weeks would be
deferred to an unspecified date within the following six
months. Plaintiff alleges this disciplinary action was
retaliation for speaking about racial profiling on February
5, 2015 at the City of Springfield event.
August 3, 2015, plaintiff returned to work as a Community
Safety Officer. Plaintiff contends that she was prohibited
from engaging in any multicultural liaison activities in her
new assignment and was essentially demoted. Defendants
maintain that even though her assignment changed, plaintiff
was neither demoted in her rank or pay, nor did her benefits
day of her return, Chief Doney met with plaintiff and her
union representative, Erik Pardee, and provided both with a
copy of the Agreement. Chief Doney advised plaintiff and
Pardee to review the Agreement with their attorneys.
Plaintiff alleges that Chief Doney stated that if she failed
to sign the Agreement or failed to comply with its terms, the
Department would terminate her.
August 10, 2015, plaintiff informed Chief Doney, in an
e-mail, that she would not sign the Agreement because she did
not agree with the investigation results or with the
subsequent discipline. Plaintiff also expressed concern that
the Agreement's provisions would prohibit her from
raising complaints regarding racial profiling and
discrimination. Plaintiff explained, "I am afraid that
by signing this agreement I will agree not to speak up if
people bring complaints to us regarding police profiling,
discrimination, etc." Barone Decl. Exs. E & G.
response, on August 12, 2015, Chief Doney provided plaintiff
and Pardee with a new version of the Agreement with changes
made to address plaintiffs concerns. Specifically, Paragraph
5(g) of the Agreement stated: "Consistent with [the
Department] General Order 26.1.1.XIX, Employee will not speak
or write anything of a disparaging or negative manner related
to the Department/Organization/City of Springfield or its
Employees. Employee is not prohibited from bringing forward
complaints she reasonably believes involve discrimination or
profiling by the Department." Doney Decl. Exs. 9 &
11; Barone Decl. Ex. A, at 2. General Order 26.1.1.XIX
provides that Department members "shall not publicly
criticize or ridicule the Department, its policies, or other
members . . . [and] shall conscientiously avoid the release
of any confidential information or information that
compromises any investigation." Doney Decl. Ex. 10, at
Doney asked plaintiff if she was prepared to sign the
Agreement, and plaintiff stated that she needed more time to
think about it. After speaking with Pardee, plaintiff told
Chief Doney that she would not sign the Agreement. Chief
Doney told plaintiff that she would be terminated if she did
not sign. Doney Decl. ¶¶ 5-6. Plaintiff confirmed